LAROSE (Migration)

[2017] AATA 2543

LAROSE (Migration) [2017] AATA 2543 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Philippe Larose

CASE NUMBER:  1605757

DIBP REFERENCE(S):  CLF2012/163561

MEMBER:John Billings

DATE:30 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

·PIC 4005(1)(c)(ii)(A) for the purposes of cl.804.226 of Schedule 2 to the Regulations.

Statement made on 30 November 2017 at 3:55pm

CATCHWORDS
Migration – Aged Parent (Residence) (Class BP) visa ­– Subclass 804 (Aged Parent) – Health criteria – Secondary applicant passed away

LEGISLATION
Migration Act 1958. Ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 804.226, Schedule 4, PIC 4005(1), PIC 4005(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 April 2016 to refuse to grant the applicant an Aged Parent (Residence) (Class BP) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr Larose, applied for the visa on 2 August 2012. The delegate refused to grant the visa on the basis that Mr Larose’s wife, Ms Andree Florence Larose, who was a secondary applicant for the visa, did not satisfy cl.804.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not meet the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations. Mr Larose applied for review on 25 April 2016. Ms Larose was not included in the review application. Mr Larose provided a copy of the primary decision to the Tribunal with the application for review. (The version held on the Department’s file is marked as a draft).

3. Mr Larose was represented in relation to the review by his registered migration agent.

4. The Tribunal was notified by Mr Larose’s representative on 27 October 2017 that Ms Larose died on 2 July 2017. She was aged 68 years. The representative submitted a copy of the death certificate. In the circumstances the Tribunal considers that it should decide the review in favour of Mr Larose on the basis of the material before it: see s 360(2)(a) of the Act.

5. Mr Larose is a national of Mauritius.  He is aged 70 years.  Mr Larose and Ms Larose were sponsored for the visas by one of their children, Ms Stephanie Larose (also known as Ms Stephanie Athale), who is a 42 year old Australian citizen.  The Department’s records indicate that at the time of the visa application Mr Larose held a Class TR Subclass 676 Tourist visa.  There is no indication that it was a substituted TR Subclass 676 visa within the meaning of the Regulations. 

6. The primary decision records that relevant medical opinion indicated that Ms Larose did not meet  Public Interest Criterion (PIC) 4005(1)(c)(ii)(A).  The Department’s file contains a copy of the opinion relating to Ms Larose only.  Nevertheless, on the other hand, the decision further records that Mr Larose did meet PIC 4005(1)(c)(ii)(A). 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue is whether Mr Larose meets PIC 4005 as required by the criteria for the grant of the visa.  PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

8. Public interest criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.

9. Public interest criterion 4005(1)(c) requires the applicant be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and  provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3).

10. As the applicant in this case has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

11. On the basis of the evidence before the Tribunal, in particular the information referred to above that is contained in the primary decision, the Tribunal finds that Mr Larose meets PIC 4005(1)(c)(ii)(A).  

12. Given this finding, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

13. The Tribunal remits the application for an Aged Parent (Residence) (Class BP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 804 (Aged Parent) visa:

    ·PIC 4005(1)(c)(ii)(A) for the purposes of cl.804.226 of Schedule 2 to the Regulations.

    John Billings
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(1)         The applicant:

    (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)is free from tuberculosis; and

    (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (2); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (2)For subparagraph (1) (c) (i), the period is:

    (a)for an application for a permanent visa — the period commencing when the application is made; or

    (b)for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (3)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

    the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.